Mangilal v. Union Of India .

Bhave, J.

1. A Division Bench consisting of Honourable Justice Oza and Honourable Justice Vyas has referred the following question for our decision, namely-

"Whether notice under Section 80, Civil P. C. is necessary for an application for compensation when filed under Section 110-A of the Motor Vehicles Act before a Claims Tribunal constituted under the Act?"

2. The facts of the case are that the appellant's daughter Rampyari Bai, aged about 12 years, was injured on 22nd November, 1966 as a result of a motor accident and subsequently died. The Motor Vehicle No. DD-4033 belonged to the Defence Services of the Government of India. The appellant, therefore, preferred a claim under Section 110-A of the Motor Vehicles Act for grant of compensation against the driver of the motor vehicle as also the Union of India on the ground that the vehicle was driven by the driver rashly and negligently causing the accident. Amongst other grounds of defence, a plea was raised on behalf of the Union of India that the claim was not tenable, as a notice under Section 80, Civil P. C. was not served on the Union of India. It may be noted at this stage that the name of the driver was deleted from the array of the respondents, as his whereabouts were not known, and only the Union of India remained as the contesting party. The Claims Tribunal framed a preliminary issue on the said objection to the effect-

"Whether the claim petition cannot be entertained for want of a notice under Section 80, Civil P. C?"

The Claims Tribunal, relying on the decision in M. P. State Road Transport Corporation v. Munnabai, 1967 ACC CJ 214 (Madh Pra) came to the conclusion that a notice under Section 80, Civil P. C. was mandatory. In this view of the matter, the claim of the appellant was dismissed with costs. The appellant, therefore, preferred an appeal before this Court.

3. When the matter came for hearing before the Division Bench, it was urged on behalf of the appellant that Section 80, Civil P. C. applied, only to a

"suit instituted against the Government; and inasmuch as, the proceedings before the Claims Tribunal could not be said to be initiated by a suit, the provisions of Section 80, Civil P. C. were not attracted. It was also urged before the Division Bench that the Claims Tribunal was not a"

Civil Court and, as such, Section 80, Civil P. C. was not attracted. In support, reliance was placed on Khairunnissa v. Municipal Corporation. Bombay, 1966 ACC CJ 37 (Bom) and Bhagwat Singh v. State of Rajasthan, AIR 1964 SC 444. It was also urged on behalf of the appellant that in 1967 ACC CJ 214 (Madh Pra) (supra) the observation that a notice under Section 80, Civil P. C. is mandatory was obiter in nature and was not binding.

4. On behalf of the respondent Union, it was urged that although the petition for compensation has been described as an "application" under Section 110-A of the Motor Vehicles Act, it is, as a matter of fact, a "plaint." It was also urged that the Claims Tribunal was, in fact, a "Civil Court" constituted to decide the claims arising out of motor accidents. Though its jurisdiction was limited, it was still a Civil Court. Reliance was placed on Sawai Singhai v. Union of India, AIR 1966 SC 1068. It was also urged that the observation in 1967 Acc CJ 214 (Madh Pra) (supra) was not in the nature of obiter and that the decision was binding on the Division Bench.

5. The Division Bench held that the claim petition presented before the Claims Tribunal could not be equated with a "plaint." The expression "suit" occurring in Section 80, Civil P. C. is nowhere defined in the Code. Section 26 of the Code only provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. It was held that the expression "in such other manner as may be prescribed" has again reference to the rules made under the Code. Hence, the presentation of the suit contemplated under the Code was before a Civil Court, the procedure before which was governed by the Code and that though the words "suit" and "plaint" were nowhere defined, any application before any Tribunal could not be treated as a "suit."

6. The Division Bench further held that a Tribunal constituted under the Motor Vehicles Act, Section 110-A is not a "Civil Court" as under Section 110-C only the power of taking evidence on oath and enforcing the attendance of witnesses has been conferred on the Tribunal and the whole Code is not made applicable to its procedure. In support of the above findings, the Division Bench relied on the decisions in Khairunnissa v. Municipal Corporation, Bombav, 1966 Acc CJ 37 (Bom) (supra); Bhagwat Singh v. State of Rajasthan, AIR 1964 SC 444 (supra) and Firm Ramsukh Saligram v. Moranmal, (ILR (1955) Madh Bha 413).

7. In 1967 Acc CJ 214 (Madh Pra) (supra) a notice under Section 80, Civil P. C. was, in fact, served on the Corporation and the question as to whether a notice under Section 80, Civil P. C. was obligatory or not was not directly involved in that case. But the Division Bench of this Court disallowed the claim to the extent it was in excess of the claim mentioned in the notice under Section 80, Civil P. C. and in that context it was observed in that case :

"As such, it can be asserted that the respondents not haying made any larger claim in the notice, their claim for an excess amount would be without any statutory notice. At the time the notice was given, the Madhya Bharat Roadways was a department of the State Government and a notice under Section 80, Civil P. C. was mandatory."

It was, therefore, held that the above said observation could not be ignored as obiter inasmuch as on the finding that a notice under Section 80, Civil P. C. was mandatory the claim in excess of the one mentioned in the notice was negatived. As the Division Bench was not agreeing with the view expressed in the case of 1967 Acc CJ 214 (Madh Pra) (supra), it referred the above said question for decision of a larger Bench.

8. From the facts narrated above, it is quite clear that two important questions arise for our decision. The first question is whether the Claims Tribunal is a "Civil Court" and even if it is a Civil Court, whether the provisions of Section 80, Civil P. C. are attracted in this case. On a difference of opinion between Honourble S. B. Sen, J. and Honourable Raina, J. as to whether a revision under Section 115, Civil P. C. lies against an order of the Claims Tribunal constituted under the Motor Vehicles Act, the matter was referred to one of us (Bhave, J.) Sen, J. was of the opinion that the Claims Tribunal was a Civil Court and, as such, Section 115, Civil P. C. was attracted. Raina, J., on the other hand, took the view that it was not a Civil Court. On reference, it held:

"A tribunal constituted under any statute, by whatever name it is described, would be treated as a 'Court of Judicature' if it is called upon to discharge the judicial functions of the sovereign State, untrammelled by executive considerations, and in reaching its conclusions it is required to follow the well-recognised judicial principles. There may be Civil Courts which enjoy general jurisdiction to decide all civil disputes between individuals inter se or between citizens and the State, and there may be Civil Courts whose jurisdiction is confined to certain specified disputes and in that sense they are somewhat different from the general Civil Courts established in the country. But the Special Courts still maintain their character as Civil Courts in spite of the fact that the matters entrusted to those special Courts are excluded from the general jurisdiction of the regular Civil Courts and that the provisions of the Code of Civil Procedure would apply to the proceedings of the Special Courts also unless specifically excluded."

Krishna Gopal v. Dattatraya, 1972 MPLJ 485 = ( AIR 1972 Madh Pra 125).

In face of the above said decision, Shri R. C. Mukati, who appeared for the appellant, did not press very seriously the point that the Claims Tribunal was not a Civil Court. It may be mentioned that in Maghanamal v. Moolchand, 1962 MPLJ 112 = (AIR 1961 Madh Pra 193), Shiv Dayal, J. had also held that the Tribunal appointed under Section 4 of the Displaced Persons (Debts Adjustment) Act, 1951 was a Civil Court amenable to the revisional Jurisdiction of the, High Court under Section 115 of the Code of Civil Procedure. We may also refer to the decision in Hayatkhan v. Mangilal, 1971 Jab LJ 597 = (AIR 1971 Madh Pra 140) wherein it was held that a claim petition under Section 110-A of the Motor Vehicles Act is a petition which for all material purposes is like a plaint pertaining to the dispute ordinarily triable in Civil Court; and that if the claimant is a minor on the date of the accident, he will be entitled to the benefit of Section 6 of the Limitation Act. In that case, reference was made to Section 2(l) of the Limitation Act which states that "suit" does not include an appeal or an application. Hence it was held that the word "suit" as contemplated under the provisions of the limitation act has a wider meaning than the one which can be attributed to "suit" under the Code of Civil Procedure. In this view of the matter, it was held that Section 6 of the Limitation Act was applicable to the proceedings before the Claims Tribunal which were initiated by a suit as contemplated under Section 2 of the Limitation Act, if not under the Code of Civil Procedure. On similar considerations, in another case, Section 5 of the Limitation Act was applied to the proceedings before the Claims Tribunal. It must, therefore, be held that the Claims Tribunal is a "Civil Court."

9. On the footing that the Claims Tribunal is a Civil Court it must be further, seen whether Section 80 of the Code of Civil Procedure is attracted when a claim is preferred before the Tribunal against the State or a public servant. In 1972 MPLJ 485 = (AIR 1972 Madh Pra 125) (supra) it has already been pointed out that when special Courts are established by a sovereign State, the provisions of the Code of Civil Procedure become applicable to the proceedings of those Courts unless specifically excluded. Under Section 110-A of the Motor Vehicles Act an application for compensation is required to be presented before the Claims Tribunal within the specified period. Section 110-C provides that the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit, and it further provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure. This provision clearly shows that the procedure to be followed is entirely left to the discretion of the Claims Tribunal and it would exercise the powers of the Civil Court conferred on it under the Code of Civil Procedure for taking evidence on oath, enforcing the attendance of witnesses and discovery and production of documents etc. The rules framed under the Motor Vehicles Act do not also make the Code of Civil Procedure as such applicable to the procedure to be follow-

ed by the Claims Tribunal. In State of Seraikella v. Union of India, AIR 1951 SC 253 it was held by Mahajan, J. (as his Lordship then was):

"By Section 204 of the Government of India Act exclusive original Jurisdiction was conferred on the Federal Court in respect of suits between States and States which were outside the ken of the Code of Civil Procedure. By Section 214 of the Government of India Act, the Federal Court was authorised to make its own rules of procedure. The code in section 4 has enacted that it does not affect any special jurisdiction or special forms of procedure. Rule 5 of the Federal Court Rules framed under Section 214 of the Government of India Act lays down in clear and unambiguous language that none of the provisions of the Code of Civil Procedure shall apply to any proceedings in the Federal Court unless specifically incorporated in these rules. The provisions of section 80 have not been incorporated in the rules and that being so, Section 80 cannot affect suits instituted in the Federal Court under Section 204 of the Government of India Act, 1935."

[P. 266] The contention of the Attorney General that the condition precedent for instituting a suit laid down in Section 80 was not a matter of procedure falling within the ambit of Section 214 of the Government of India Act and that the Federal Court could not make rules eliminating the condition precedent laid down in Section 80 before a suit could be instituted against the Government was repelled. It was held by his Lordship :

".........this contention is not sound. Section 214 lays down that the Federal Court may from time to time with the approval of the Governor General make rules of court for regulating generally the practice and procedure of the Court. 'Practice' in its larger sense like procedure, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law that gives and defines the right. 'Procedure' as denned in Wharton means the mode in which successive steps in litigation are taken. It seems to me that what is enacted in Section 80 is the first step in litigation between the parties when the cause of action is complete. Section 80 in effect provides that an advance copy of the plaint should be served on the defendant and no suit should be instituted in Court until the expiry of two months after such service. Section 80 does not define the rights of parties or confer any rights on the parties. It only provides a mode of procedure for getting the relief in respect of a cause of action. It is a part of the machinery for obtaining legal rights, i.e., machinery as distinguished from its products."

(P. 266).

The situation in the present case is not, in any way different. What procedure is to be followed by the Claims Tribunal is left to its discretion subject to rules framed by the State in that behalf. We have already pointed out that no rules have been made so as to apply Section 80 of the Code of Civil Procedure to the proceedings before the Claims Tribunal. The provisions of the Code of Civil Procedure have been made applicable only to the extent of taking evidence on oath, enforcing the attendance of witnesses and compelling of discovery and production of documents etc. It cannot, therefore, be said that section 80 of the code becomes automatically applicable to the proceedings before the Claims Tribunal. In this connection, reference may be made to a decision of the Division Bench of the Bombay High Court in the Employees' State Insurance Corporation, Bombay v. Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd., AIR 1967 bom 472. section 96 of the employees' state insurance act, 1948, empowers the State Government to make rules for certain matters including the procedure to be followed in proceedings before the Employees' Insurance Courts and for execution of orders made by such Courts. In exercise of the above said powers the State Government had framed Rule 17 which provided that every application to the Court shall be brought within 12 months from the date on which the cause of action arose or, as the case may be, the claim became due. This Rule was challenged on the ground that it was in excess of the powers conferred on the State Government inasmuch as Section 96 only authorised framing of rules for the procedure to be followed in proceedings before such Courts, that is to say, after the proceedings were initiated and not for any antecedent activity. This contention was upheld by the Bombay High Court and the Rule was struck down. While discussing this matter, it was observed by the Bench:

There can be no dispute that the law of limitation is a procedural or adjectival Law and is not a part of substantive law. It is procedural or adjectival, because it regulates the manner in which substantive rights can be enforced by judicial action. In that sense the impugned Rule 17 is clearly a procedural rule. That does not, however, mean that the rule is a part of the procedure to be followed in proceedings', on which topic the State Governments have been empowered by Section 96(1)(b) to make rules. In deciding a case a Court has to apply procedural law as well as substantive law. But it is clear that the whole of the procedural law is not on that account a part of the procedure 'followed' by a Court. An illustration may help in making this distinction clear. In this very Act there is Section 80 which lays down that an Employees' Insurance Court shall not direct the payment of any benefit to a person unless he has made a claim for such benefit in accordance with the regulations made in that behalf, within twelve months after the claim became due. Mr. Nariman referred in this connection to the regulation making powers of the Corporation under Section 97(2)(viii) and argued, quite rightly, that Section 80 requires an employee to make a claim within twelve months to the Corporation for any benefit which is receivable by him under the Act, and that the making of such a claim to the Corporation is a condition of the maintainability of his application in an Employees' Insurance Court. Now, Section 80 is clearly a procedural section, for it regulates the manner in which a person should proceed to secure the payment of any benefit to which he may be entitled under the Act. It cannot, however, be claimed that because Section 80 is procedural in character it is a part of the procedure to be followed in proceedings before an Employees' Insurance Court. Another instance is of Section 80 of the Code of Civil Procedure which requires a notice to be given to the Government or a public officer before filing a suit against them. That section is also procedural, but it cannot be held to be a part of the procedure to be followed in a proceeding before a Court.

(P. 477).

From the decision of the Bombay High Court it is clear, that a distinction is made between the procedure that a party may be required to follow as a condition precedent for instituting the proceedings, and the procedure that a Court is required to follow after the proceedings are instituted. Now, under the. Motor Vehicles Act no provision is made regarding any procedure to be followed before presentation of the claim before the Claims Tribunal. The only antecedent procedure prescribed is that the application should be filed within a specified period. As to the procedure that is to be followed by the Claims Tribunal, the same is entirely left to its discretion subject to rules made by the State Government and the indications given in Subsection (2) of Section 110-C of the Motor Vehicles Act. In this view of the matter, we are inclined to hold that the provisions of Section 80 of the Code of Civil Procedure are not attracted in the matter of filing a claim petition before the Claims Tribunal constituted under the Motor Vehicles Act. We may observe that in M. P. State Road Transport Corporation v. Munnabai (supra) the question whether Section 80 of the Code of Civil Procedure was attracted in the claim proceedings was not directly before that Court. The Division Bench proceeded on the assumption that the provisions of section 80 were attracted and on that basis the claim of the respondents was confined to the amount mentioned in the notice. As there is no discussion of the point involved, it is not necessary to say anything further on that matter.

10. In the view we have taken it is not further necessary to decide as to whether the claims petition can be equated with a 'plaint' and in that sense whether it can be said that the proceedings before the Claims Tribunal are by way of a suit or not.

11. Our answer to the question referred to us is:

"Notice under Section 80, C.P.C. is not necessary for an application for compensation when filed under Section 110-A of the Motor Vehicles Act, before a Claims Tribunal constituted under the Act."

Motor Vehicles Act,